Citation Nr: 1800211 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-35 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bursitis, right shoulder (claimed as rotator cuff tendinopathy). 2. Entitlement to service connection for depression (claimed as a sleeping disorder). 3. Entitlement to service connection for Bell's Palsy. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel INTRODUCTION The Veteran had service in the United States Army from July 1991 to December 1991 (active duty for training) and from January 2003 to October 2003 (active duty). This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a January 2010 decision of the VA Regional Office (RO) St. Petersburg, Florida. In July 2017, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The VLJ agreed to hold the record open for 60 days to allow the Veteran time to supplement the record with additional evidence. No additional evidence was submitted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a bursitis disability that is etiologically related to a disease, injury, or event which occurred in eligible service. 2. The preponderance of the evidence is against finding that the Veteran has depression that is etiologically related to a disease, injury, or event which occurred in eligible service. 3. The preponderance of the evidence is against finding that the Veteran has Bell's Palsy that is etiologically related to a disease, injury, or event which occurred in eligible service. CONCLUSIONS OF LAW 1. The criteria for service connection for bursitis have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for depression have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for Bell's Palsy have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist VA has duties to notify and assist a Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran of any information, and any medical or lay evidence, which is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the Veteran is expected to provide. Ideally, the notice should be provided to the Veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, the Board finds that VA has satisfied its duty to notify. Regarding the Veteran's claims for service connection, the RO provided the Veteran with proper notice by letters dated in February 2009, November 2009, May 2009, and February 2011. This notice complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006), identifying the five elements of a service connection claim, and Quartuccio, identifying the evidence necessary to substantiate a claim and the relative duties of VA and the Veteran to obtain evidence. Furthermore, the Veteran was also afforded an opportunity to present testimony at a hearing before the Board. In connection with the current appeal, an appropriate VA medical opinion has been rendered in connection with the shoulder claim and service treatment records, and post-service records have been obtained. In regard to the other claims, the Board finds that there is no duty to provide a VA examination and nexus opinion. The only evidence of record relating the Veteran's claimed disabilities to service are the Veteran's own general conclusory statements, which do not meet the low threshold of an indication that the claimed disabilities are due to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. II. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (a) (2017). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ('nexus') between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b) (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). The claimed disabilities are not chronic disabilities. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Analysis Bursitis, Right Shoulder The Veteran contends that she has bursitis that is related to her military service. Specifically, the Veteran contends that she developed bursitis, right shoulder as a result of doing push ups and other strenuous training. Turning to the evidence of record, service treatment records reveal that the Veteran was seen for treatment of right shoulder pain in March 2003, June 2003, and July 2003. At the time of the examination, the Veteran noted that she did not suffer any trauma and did not have any other complaints. The diagnosis provided was sub deltoid bursitis for which she was treated with activity modifications and given steroid injections. Upon examination, the examiner noted that the bursitis was not deployment related. In September 2009, the Veteran was afforded a VA examination. The Veteran reported gradual onset of right shoulder pain in 2003 and described an episodic course since onset. The Veteran complained of having right shoulder give away, pain, stiffness, and weakness. The Veteran also reported severe weekly flare-ups lasting hours. Upon physical examination, the Veteran's range of motion was recorded as being flexion to 160 degrees, abduction to 150 degrees, internal rotation to 80 degrees, and external rotation to 80 degrees. X-rays demonstrated no bony abnormality. The examiner ultimately opined that the Veteran's right shoulder pain was less likely as not caused by or a result of a right shoulder condition from service. The rationale provided was that the Veteran's current condition was secondary to a combination of subtle glenohumeral instability and scapular dyskinesia as a consequence of chronic muscular imbalance, weakness, and fatigability. The examiner further stated that the Veteran's period of active duty was extremely short (less than 1 year); thus, active duty induced repetitive microtrauma could not account for the lack of muscle strength, endurance or normal motion between the muscles of the shoulder girdle and the glenohumeral joint. Therefore, only a high-energy injury such as a fracture, tendon tear, or muscle tear could explain an extreme alteration to her normal shoulder mechanics in such a short time interval. However, the Veteran's history and the documented post-injury exam were inconsistent with those findings. At the July 2017 hearing, the Veteran testified that she was being seen for bursitis by her private chiropractor. The Veteran also testified that she was seen by a private neurologist the week before the hearing and that the neurologist gave her a referral for physical therapy. When asked whether the neurologist provided the referral due to the bursitis claimed in the military, the Veteran responded in the negative. The Veteran also reported that her condition has continued since she separated from the military. The VLJ left the record open for 60 days to allow the Veteran to submit private medical treatment records that the Board did not have in its possession. However, no such information was received. Based on the above, and the evidence currently before the Board, the Board finds that the evidence of record is against a finding that the Veteran's current right shoulder disability is related to military service. In this regard, in the September 2009 examination report, the examiner found that the current right shoulder disability was not related to military service. The only evidence of record that the Veteran's right shoulder disability is in any way related to her military service are the lay assertions of record. While lay persons are competent to provide opinions on some medical issues, determining the etiology of pathology associated with the right shoulder falls outside of the realm of common knowledge of a lay person. Thus, while the Veteran is competent to report symptoms, any opinion regarding the etiology of her disability requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d. 1372, 1376 (2007). In a case such as this, expert testimony is necessary to establish causation. Therefore, the Veteran's assertions are outweighed by the probative opinion of the VA examiner. While the evidence shows that the Veteran suffered from sub deltoid bursitis while in service, it was determined that there was no causal relationship between the disability which occurred in service and the current condition. Therefore, service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Depression The Veteran contends that she has depression that is related to her military service. The Board first notes that the Veteran's active duty service treatment records are completely silent for any treatment or diagnosis of depression. The Veteran was first diagnosed with depression in February 2004. Outpatient treatment reports, dated in June 2004, from private physician, Y.B., revealed that the Veteran was seen for treatment. In a June 2004 letter, the physician noted that it may have been related to the stress and anxiety from the Veteran's current job situation. The Veteran was prescribed medication. On the reserve examination conducted in July 2007, the Veteran reported a history of having anxiety for which she had been prescribed medication. In a January 2011 Notice of Disagreement, the Veteran stated that as a result of her mobilization, she fell into a state of anxiety with depression. She further stated that due to her leadership position, she did not seek treatment. She also stated that her condition became more severe following separation from service. In separate correspondence, also dated in January 2011, the Veteran commented on the letter that the private physician previously provided. Because she explained to her doctor that she was still in the military, she clarified that her physician was under the impression that they were discussing the military job only, not a civilian job. At the July 2017 hearing, the Veteran stated that there were a few stressors that caused her to be depressed. The Veteran attributed her depression to the fact that she was separated from her children, her stressful leadership position, and the notification that she could possibly be deployed. The Veteran also reported that she was still taking medication for depression and seeing another private physician. Following the hearing, the VLJ left the record open for 60 days to allow the Veteran to submit private medical treatment records, and to obtain a nexus opinion; however, no such information was received. While the evidence before the Board shows that the Veteran was seen for depression and sleep problems and prescribed medication, there has been no causal relationship persuasively shown between depression or sleeping problems and military service. Specifically, the medical evidence first documents treatment of depression and sleeping problems in February 2004. The private physician attributed the Veteran's condition to her current job situation, and there is no evidence of record placing the Veteran on active duty at that time; the Veteran separated from service in October 2003. Therefore, the Veteran's claim for service connection must be denied as the condition is not persuasively shown by the evidence of record to have incurred during or was caused by service. The only evidence of record that the Veteran's depression and sleeping problems are in any way related to her military service are the lay assertions of record. The issue of whether a lay person is competent to diagnose depression and opine as to its cause is not unique to veterans law. See generally Restatement (Third) of Torts: Phys. & Emot. Harm, § 4 (2010) (reviewing evidentiary rulings on proving the existence of emotional harm and its likely causes from several jurisdictions). To the extent that other courts have addressed the weight to be given to lay evidence on this issue, the Board finds the logic and reasoning of these cases useful. Generally, courts have required objective indicia or "some guarantee of genuineness" sufficient to verify the existence of a mental injury or emotional harm. Johnson v. State, 334 N.E.2d 590, 592 (N.Y. 1975). The rationale given for this rule is that mental disturbance is easily simulated. The requirement of objective indicia may be met by clear medical proof of the existence of the claimed injury. The Board concludes that this rule is compatible with the veterans benefits system. VA regulations already require medical proof that psychoses and posttraumatic stress disorder are diagnosed in conformity with the medical standards contained in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorder, Fifth Ed. See 38 C.F.R. §§ 3.304 (f), 3.384, 4.125(a) (2015). Although the Board recognizes that a lay person may competently report subjective feelings, the Board looks to the medical evidence of record to determine whether a current psychiatric disability exists, and whether it is etiologically related to service. Here, there is no medical opinion evidence linking the Veteran's depression and sleeping problems to her active duty military service. Thus, all the elements necessary for service connection are not met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Bell's Palsy The Veteran contends that she is entitled to service connection for Bell's Palsy, Specifically, the Veteran attributes the Bell's Palsy to the stress associated with military service. The Veteran's active duty service treatment records are completely silent for any treatment or diagnosis of Bell's Palsy. Outpatient treatment reports from the Veteran's private physician, Y.B., reveal that she was seen for treatment of mild Bell's Palsy from February 2004 to March 2004. In a June 2004 letter, Dr. Y.B. wrote that the Veteran suffered from Bell's Palsy since February 2004, but that recovery was expected. In a January 2011 Notice of Disagreement, the Veteran stated that treatment for the Bell's Palsy has not been successful, and that she continues to experience stiffness, discomfort, and pain on the left side of her face every time that she yawns. The Veteran also reported that the condition was severe enough to affect her quality of life. At the July 2017 hearing, the Veteran testified that although the Bell's Palsy was resolved, she still has residual effects from the condition. Specifically, the Veteran testified that, at times, her left side locks up. Additionally, the Veteran testified that she visited a private neurologist and that the neurologist stated that she had muscle and ligament damage resulting from the Bell's Palsy. Following the hearing, the VLJ left the record open for 60 days to allow the Veteran to submit private medical treatment records, and to obtain a nexus opinion; however, no such information was received. While the evidence before the Board shows that the Veteran was seen for Bell's Palsy, there has been no causal relationship persuasively shown between her Bell's Palsy and any claimed residuals and her military service. Specifically, the medical evidence first documents onset and treatment of Bell's Palsy in February 2004. The only evidence of record that the Veteran's Bell's Palsy is in any way related to her military service are the lay assertions of record. While lay persons are competent to provide opinions on some medical issues, determining the etiology of a pathological process affecting the face falls outside of the realm of common knowledge of a lay person. Thus, while the Veteran is competent to report symptoms, any opinion regarding the etiology of her Bell's Palsy requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d. 1372, 1376 (2007). In a case such as this, expert testimony is necessary to establish causation. The evidence of record is insufficient to substantiate the claim for service connection. See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (explicitly rejecting the argument that "the Board must accept a veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding that the Board must determine "the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bursitis, right shoulder is denied. Entitlement to service connection for depression (also claimed as sleeping disorder) is denied. Entitlement to service connection for Bell's Palsy is denied. ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs